Spain - Supreme Court, 30 June 2011, 1519/2010
Keywords:
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Indiscriminate violence
Description
Violence in situations of international or internal armed conflict which presents a serious and individual threat to a civilian's life or person for the purposes of determining the risk of serious harm in the context of qualification for subsidiary protection status under QD Art. 15(c). |
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Medical Reports/Medico-legal Reports
Description
“Expert medical report used as evidence relevant to the application for international protection. Where psychological elements are relevant, the medical report should provide information on the nature and degree of mental illness and should assess the applicant's ability to fulfil the requirements normally expected of an applicant in presenting his case. The conclusions of the medical report will determine the examiner's further approach.” |
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Persecution Grounds/Reasons
Description
Per Article 1A ofthe1951 Refugee Convention, one element of the refugee definition is that the persecution feared is “for reasons of race, religion, nationality, membership of a particular social group or political opinion“. Member States must take a number of elements into account when assessing the reasons for persecution as per Article 10 of the Qualification Directive. |
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Subsidiary Protection
Description
The protection given to a third-country national or a stateless person who does not qualify as a refugee but in respect of whom substantial grounds have been shown for believing that the person concerned, if returned to his or her country of origin, or in the case of a stateless person, to his or her country of former habitual residence, would face a real risk of suffering serious harm as defined in Article 15 of 2004/83/EC, and to whom Article 17(1) and (2) of 2004/83/EC do not apply, and is unable, or, owing to such risk, unwilling to avail himself or herself of the protection of that country.” “Note: The UK has opted into the Qualification Directive (2004/83/EC) but does not (legally) use the term Subsidiary Protection. It is believed that the inclusion of Humanitarian Protection within the UK Immigration rules fully transposes the Subsidiary Protection provisions of the Qualification Directive into UK law. |
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Political Opinion
Description
One of the grounds of persecution specified in the refugee definition per Article 1A ofthe1951 Refugee Convention. According to the Qualification Directive the concept of political opinion includes holding an opinion, thought or belief on a matter related to potential actors of persecution and to their policies or methods, whether or not that opinion, thought or belief has been acted upon by the applicant. |
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Internal armed conflict
Description
“A conflict in which government forces are fighting with armed insurgents, or armed groups are fighting amongst themselves.” |
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Individual threat
Description
An individual threat to a civilian's life or person must be proven in order to establish the serious harm required before an applicant will be eligible for subsidiary protection status on the grounds set out in QD Art. 15(c). “Risks to which a population of a country or a section of the population is generally exposed do normally not create in themselves an individual threat which would qualify as serious harm.” |
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Gender Based Persecution
Description
‘Gender-related persecution’ is used to encompass the range of different claims in which gender is a relevant consideration in the determination of refugee status. Gender refers to the relationship between women and men based on socially or culturally constructed and defined identities, status, roles and responsibilities that are assigned to one sex or another. Gender is not static or innate but acquires socially and culturally constructed meaning over time. Gender-related claims may be brought by either women or men, although due to particular types of persecution, they are more commonly brought by women. Gender-related claims have typically encompassed, although are by no means limited to, acts of sexual violence, family/domestic violence, coerced family planning, female genital mutilation, punishment for transgression of social mores, and discrimination against homosexuals." |
Headnote:
The applicant claimed asylum in 2006 (along with her children) alleging a well founded fear of persecution on the grounds of political opinion. The application was refused in the initial procedure and on appeal. She returned to Colombia and two years later, returned to Spain and reapplied for asylum and was again refused. She lodged an appeal before the Supreme Court and was granted subsidiary protection.
Facts:
The applicant entered Spain on the 15th April 2006 and claimed asylum at the border alleging a well founded fear of persecution in Colombia on the grounds of political opinion as her partner actively supported the Conservative Party. She stated that her partner had already applied for asylum in Spain and his application was under examination. She claimed to have suffered rape and physical mistreatment by a non-identified group, who subsequently threatened her and her partner.
UNHCR issued a negative decision on the applicant’s case and on the 17th April, two days after the application, she was refused in the preliminary examination procedure. The applicant appealed this negative decision. The appeal was refused and both the applicant and her partner were requested to return to Colombia. In both administrative decisions the refusal was based on inconsistencies identified in the report presented by the applicants upon which their case was based. It was alleged that the applicant failed to establish a link between the attack suffered (and the subsequent threats) and her political opinions.
On the 10th May 2007, the applicant returned to Spain and reapplied for asylum under the border procedure providing ample documentation to support the allegations. The application was accepted under the preliminary examination. However, on the 4th September 2008, the application was refused by the Ministry of Interior based on similar reasons provided in the two earlier decisions.
On 14th October 2008, the applicant lodged an appeal against the decision to refuse refugee status before the High National Court: the appeal was again refused.
On 28th January 2010 the applicant lodged an appeal before the Supreme Court as a last resort.
Decision & reasoning:
The Supreme Court reiterated several considerations already expressed by the previous authorities concerning inconsistencies encountered and stated that the persecution in accordance with the 1951 Refugee Convention had not been established.
Notwithstanding, the Court examined the secondary request for subsidiary protection on the grounds of serious and individual threat by reason of an internal armed conflict. The Supreme Court found that the physical and mental integrity of the applicant would be threatened if she returned to Colombia. The attack suffered in 1999 had resulted in serious psychological consequences.
This declaration, and consequently the granting of subsidiary protection, were based fully on the information provided in a psychosocial report by the Refugee Reception Centre (CAR) of Valencia. This report recommended that the applicant should not be returned as she required a secure and stable environment.
According to the report, the applicant suffered individually as a result of the on-going situation of indiscriminate violence in Colombia. The report stated, “The applicant has to be protected regardless of the identity of the criminal gang (terrorists or criminal gang) that carried out the attack.”
Outcome:
The appeal was partially successful: refugee status was not granted but subsidiary protection (expressed in the decision as “residence for humanitarian reasons” because the former Spanish Asylum Law 5/1984, Art 15 was applied) was granted.
Observations/comments:
This decision is important because the Supreme Court supports its decision for granting subsidiary protection exclusively by a psychosocial report.
Relevant International and European Legislation:
Follower Cases:
| Follower Cases |
| Spain: National Court. Chamber of Contentious-Administrative Proceedings, 26 December 2013, Appeal No. 327/2012 |